While portions of California’s Immigrant Worker Protection Act have been enjoined, employers remain subject to notice obligations. California passed a statute limiting the extent to which employers could cooperate with federal immigration officials. Litigation quickly ensued, and a recent decision enjoined enforcement of part of the law, while leaving other provisions unaffected. With the speed of the news cycle, employers may understandably require clarification as to which immigration policies are actually in effect. What portions of the sanctuary state law were enjoined, and what parts remain effective?

The Immigration Worker Protection Act (AB 450), which went into effect in January 2018, imposed three primary obligations on employers:

A prohibition against allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace, or to access employee records, without a judicial warrant;

A prohibition against re-verifying the employment eligibility of a current employee outside the time and manner required by federal law; and

A requirement to provide notice to employees upon receipt of a Notice of Inspection of Form I-9, and after the inspection, provide notice regarding the results of the inspection.

Almost immediately, the law was challenged in court, in a case called United States v. California. On July 5, 2018, John A. Mendez of the United States District Court for the Eastern District of California issued a preliminary injunction blocking the enforcement of the first two of the above obligations, but not the third obligation concerning notice. The court reasoned that the first prohibition on cooperation with federal immigration officials likely “impermissibly discriminates against those who choose to deal with the Federal Government,” and therefore violates the intergovernmental immunity doctrine. The court also found that the second prohibition on early re-verifications likely violates the Supremacy Clause. The notice obligation, on the other hand, regulates the employer’s “failure to communicate with its employees,” and is therefore likely a permissible exercise of state power.

Accordingly, as it currently stands, the notice provisions are in effect. Under the statute, employers must notify employees and labor union representatives within 72 hours of receiving a Notice of Inspection of Form I-9. Employers must include the name of the federal agency conducting the inspection, the nature of the inspection, the date the employer received the inspection notice, and a copy of the inspection notice. Additionally, within 72 hours after the inspection takes place, employers must also provide affected employees and their labor union representatives with the results of the inspection, a timeframe for correcting any deficiencies found, the date and time of any meetings with the employer to correct any deficiencies found, and a notice to the employees about their rights to representation during any meeting with the employer.

It is important to note that at this point the court entered a preliminary injunction; the ultimate enforcement of the statute may change when the case reaches completion, and even then, an appeal to the Ninth Circuit (and perhaps ultimately to the Supreme Court) is likely.

I am an HR manager working for a US company that sends employees on long term assignment abroad. One of our senior assignees recently rang me to say how worried he is about Greek politics and the potential effect on the Euro. He wanted to know what I was going to do about it. I was a bit puzzled at first as, obviously, I can’t sort out a European currency crisis, but it turns out that what he is really worried about is his own pay. His salary is set in Euro, and he is worried about how he will pay his US dollar mortgage and his mother’s US care home bills if the Euro falls. I reassured him that we would look at his salary again if that happened (which didn’t really satisfy him). Later, I began to worry about what would happen if I promised a pay raise and then the value of the Euro rose against the dollar again. What can we do to make things more secure for our employees working overseas without taking on too much business risk? Answer→

On May 26, 2011, the Supreme Court issued its decision in Chamber of Commerce v. Whiting, No. 09-115. In the 5-3 decision, with Justice Kagan taking no part, the court affirmed the Ninth Circuit and held that the federal Immigration Reform and Control Act (“IRCA”) does not preempt provisions of Arizona’s Legal Arizona Workers Act (“LAWA”) imposing civil penalties on employers who hire unauthorized aliens and mandating that employers conduct employee background checks through E-Verify.

Background

The IRCA makes it “unlawful for a person or other entity . . . to hire, or to recruit or to refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U.S.C. § 1324a(h)(2). While the IRCA prohibits states from imposing “civil or criminal sanctions” on employers who hire unauthorized aliens, it does allow states to impose penalties through “licensing and similar laws.” LAWA does just that, allowing Arizona courts to suspend or revoke the licenses necessary to do business in that state if an employer intentionally or knowingly employs an unauthorized alien. Ariz. Rev. Stat. Ann. §§23–211, 212, 212.01.

The IRCA additionally requires employers to document via an Employment Eligibility Verification Form, commonly known as Form I-9, that all individuals hired after November 6, 1986, are either United States citizens or aliens properly authorized to work in this country. Answer→

This question is not especially “quirky.” I know that last year, you described the important employment cases that the U.S. Supreme Court was going to consider in the following year. I’ve seen a lot of press recently about the Walmart-Dukes case. What other employment cases will the Supreme Court be considering next term? Answer→

The Fraud Detection and National Security (FDNS) unit of U.S. Citizenship and Immigration Services (USCIS) has been conducting employer site visits for several years. The unit has recently expanded the worksite visit program by adding substantially more staff and broadening its investigative efforts. What this means is that the employers that have sponsored foreign workers for employment (e.g., H-1B petition) may have an increased chance of getting a site visit by an FDNS unit officer (or a private investigator contracted by USCIS), who, in most situations, will arrive at the worksite unannounced. Employers will want to be prepared for such surprise visits.

FDNS officers typically spend anywhere from 15 to 90 minutes at the employer’s site. The officer will likely ask to speak to a human resources manager. Infrequently, the foreign national beneficiary of the petition in question and his or her direct supervisor or manager may also be contacted. Answer→